Citation Nr: 1146660
Decision Date: 12/21/11 Archive Date: 12/29/11
DOCKET NO. 04-42 828 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia
THE ISSUE
Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a heart condition, to include rheumatic heart disease.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. Fitch, Counsel
INTRODUCTION
The Veteran served on active duty from January 1966 to January 1968.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which declined to reopen the claim of service connection for a heart condition based on the absence of new and material evidence.
In May 2006, this matter was remanded to ensure compliance with due process requirements.
In March 2009, the Board denied the Veteran's application to reopen the previously denied claim of entitlement to service connection for a heart condition, to include rheumatic heart disease. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which in an April 2010 Order, granted the parties' Joint Motion, vacating the Board's March 2009 decision and remanding the issue for compliance with the terms of the Joint Motion.
The appeal was again remanded by the Board in October 2010 for further development.
FINDINGS OF FACT
1. The last final (unappealed) disallowance of the Veteran's claim was in January 2000, based upon the absence of evidence that his pre-existing heart condition had permanently worsened as a result of military service.
2. Evidence presented since the January 2000 denial does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The January 2000 decision is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.160, 20.302, 20.1103 (1999).
2. The evidence added to the record since January 2000 is not new and material, and the claim of service connection for a heart condition is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VCAA
In correspondence dated in February 2004, May 2006, and May 2007, the Agency of Original Jurisdiction (AOJ) and the Appeals Management Center (AMC) provided notice to the Veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The May 2007 notice specifically informed the appellant of the appropriate standard for new and material evidence. The notice also explained that in order to reopen the case, any additional evidence submitted must relate to the Veteran's assertion that his pre-existing heart condition was permanently worsened as a result of military service, because the absence of such evidence was the reason for the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006).
Regarding the duty to assist, in a claim to reopen, VA's responsibility extends to requesting evidence from any new source identified by the claimant, and if that evidence is then not new and material, the claim is not reopened, and VA's duties have been fulfilled. See 38 U.S.C. § 5103A(f); 38 C.F.R. § 3.159(c)(4)(C)(iii). As discussed above, in this case, the AMC complied with VA's notification requirements and informed the appellant of the information and evidence needed to substantiate his claim. The Veteran requested that recent VA treatment records be obtained to support his claim. The identified treatment records were associated with the claims file. This matter was also remanded in October 2010 in order to obtain treatment records from Fort Knox Base Hospital dated in February 1966. These records were obtained and associated with the Veteran's claims file
As the newly received records include additional service treatment records which were not previously associated with the claims file, the Board very carefully considered the provisions of 38 C.F.R. § 3.156(c). The Board notes that VA revised 38 C.F.R. § 3.156(c) during the pendency of the appeal. See 71 Fed. Reg. 52,455-52,457 (Sept. 6, 2006) (codified at 38 C.F.R. § 3.156(c)). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); see Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply); see also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000).
The general rule that service department records added to the file compel reconsideration rather than reopening has been consistent throughout the appeal. See generally 38 C.F.R. § 3.156(c) (2006, 2007). Prior to October 6, 2006, however, 38 C.F.R. § 3.156(c) explained that supplemental reports from a service department, including documents which had been misplaced or corrections of errors of commission or omission in the preparation of the prior reports, would result in reconsideration. The prior version did not expressly exclude any documents from triggering the provision of 38 C.F.R. § 3.156(c), and did not indicate that reconsideration was limited to "relevant" official service department records. See 38 C.F.R. § 3.156(c) (2006). As noted above, the revised version indicates that 38 C.F.R. § 3.156(c) does not apply to records which VA could not have obtained when it previously decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the official source, and contains a phrase limiting reconsideration to relevant official service department records. 38 C.F.R. § 3.156(c) (2007).
The stated purpose of revision of 38 C.F.R. § 3.156(c) was to include clarification of the regulation to reflect VA practices, and the substance of the regulation was essentially unchanged. See 70 Fed. Reg. 35,388 (June 20, 2005); see also 71 Fed. Reg. 52,455 (Sept. 6, 2006) (noting that two changes that did not alter the substantive content of 38 C.F.R. § 3.156(c) were made). The clarifications, however, are generally deemed to be the more favorable version and therefore the Board will consider the claim under the new regulations. See 70 Fed. Reg. 35,388 ("[I]n practice, VA does not limit its reconsideration to 'misplaced' service department records. Rather VA intended the reference to misplaced records as an example of the type of service department records that may have been unavailable when it issued a decision on a claim."); see also Vigil v. Peake, 22 Vet. App. 63 (2008); Jackson v. Nicholson, 449 F.3d 1204, 1208 n.5 (Fed. Cir. 2006)(indicating the retroactive date allowed for by 38 C.F.R. § 3.156(c) applied in limited circumstances such as when records have been misplaced.).
In the present case, the claim was previously denied in January 2000. At the time of the January 2000 decision, service treatment records from Fort Knox Base Hospital dated in February 1966 were not contained in the Veteran's claims file. The newly acquired records indicate that the Veteran was admitted for four days for the treatment of an acute upper respiratory infection. Upon discharge, there were no residual disability or complications reported. These records do not indicate any complaints of or treatment for a heart condition. As such these records cannot be considered "relevant" official service department records for purposes of reconsidering the claim pursuant to 38 C.F.R. § 3.156(c). Consequently, the provisions of 38 C.F.R. § 3.156(c) are not applicable and the Veteran must submit new and material evidence in order to reopen the claim.
II. New and Material Evidence
A review of the record reveals that the Veteran's claim for service connection for a heart condition was originally denied by a January 2000 rating decision. The Veteran did not appeal this rating decision, therefore, it is the last final adjudication. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). The RO determined that the evidence submitted did not show permanent worsening of a heart condition in service.
The Veteran then submitted an application to reopen the claim in December 2003. The RO declined to reopen the claim by rating decision in May 2004, finding that no new and material evidence had been submitted. Nevertheless, regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims).
As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The Board observes that a regulatory change with respect to new and material evidence claims has been made which applies prospectively to all claims submitted on or after August 29, 2001. See 66 Fed. Reg. 45,620-30 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156(a)]. Because the Veteran filed his claim to reopen after this date, the new version of the law is applicable in this case.
Under the revised regulation of 38 C.F.R. § 3.156(a), new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for the evidence to be sufficient to reopen a previously denied claim, the evidence must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The Board may then proceed to the merits of the claim on the basis of all of the evidence of record.
VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273, 283 (1996).
Since the last final disallowance of the claim in January 2000, the Veteran submitted personal statements and testimony at a January 2006 Board hearing, a December 2003 letter from a private physician, private and VA medical treatment records, and records of his treatment at Fort Knox Base Hospital dated in February 1966. This evidence shows that the Veteran has been diagnosed and treated for chronic atrial fibrillation and hypertensive heart disease. The February 1966 records indicated that the Veteran was admitted for four days for the treatment of an acute upper respiratory infection. Upon discharge, there were no residual disability or complications reported. The February 1966 records do not indicate any complaints of or treatment for a heart condition. In addition, the records submitted since the January 2000 decision do not contain evidence indicating that a heart condition had its onset in service or was aggravated by the Veteran's active military service.
This evidence is new in that it has not previously been considered by agency decision makers. However, it is not material as the new evidence does not relate to an unestablished fact necessary to substantiate the claim. To be precise, the new evidence does not relate to or show that the Veteran's pre-existing heart condition was permanently aggravated by military service. 38 C.F.R. § 3.306. See also Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of disease, without addressing other crucial matters, such as medical nexus, does not constitute new and material evidence). In the absence of new and material evidence, the claim for service connection for a heart condition cannot be reopened.
The Board also notes that the Veteran has contended on his own behalf that he has a heart condition that is related to his service and that he had rheumatic heart disease while serving in the military. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet.App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).
In the instant case, the Board finds that the question regarding the potential relationship between a heart condition and his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Moreover, the Veteran's contentions regarding his relationship between his condition and his military service to be duplicative of the evidence of record at the time of the January 2000 rating decision. Further, in Moray v. Brown, 5 Vet. App. 211 (1993), the Court noted that lay persons are not competent to offer medical opinions or diagnoses and that such evidence does not provide a basis on which to reopen a claim of service connection.
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As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply.
ORDER
The application to reopen the previously denied claim of entitlement to service connection for a heart condition, to include rheumatic heart disease, is denied.
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C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs